Water Diversion – Michigan Green Lawhttp://michigangreenlaw.com
Evaluating the green spectrum from cleanup and redevelopment to green construction and green energy.Wed, 15 Aug 2018 19:40:52 +0000en-UShourly1https://wordpress.org/?v=5.0.1Wisconsin Great Lakes Withdrawals Under the Radarhttp://michigangreenlaw.com/wisconsin-great-lakes-withdrawal-under-the-radar
http://michigangreenlaw.com/wisconsin-great-lakes-withdrawal-under-the-radar#respondThu, 03 May 2018 12:37:48 +0000http://michigangreenlaw.com/?p=8351In the hew and cry regarding Nestle and its attempt to withdraw 400 gallons of water per minute (more on that in another post), I’ve seen almost no press regarding two attempts from Wisconsin to withdraw far more than that.

Withdrawals of water from the Great Lakes are governed by the Great Lakes Compact which was approved by all eight Great Lakes states, Ontario, Quebec, and the U.S. Congress, and signed by President George W. Bush in 2008.

The Compact bans the diversion of Great Lakes water outside the basin, with certain exceptions. Two situations allow a community outside the Great Lakes basin, if approved by the States to apply for a diversion when:

A community that is located partially in the Great Lakes basin may apply for a diversion.

A community that is located within a county that is partially in the basin, may apply for a diversion.

Any community applying for a diversion must demonstrate that it has exhausted all available options for getting water. A diversion must be a last resort. Any request for a diversion must be approved by all eight Great Lakes states and so any state may veto the diversion application.

The City of Waukesha, Wisconsin, a few miles west of Milwaukee, is outside the Great Lakes basin but in a county partially in the basin. In 2016, Waukesha applied for a diversion of water from Lake Michigan arguing that the City’s water supply is contaminated with radium, a naturally occurring carcinogen. Waukesha’s application was the first test of the Great Lakes Compact. On June 21, 2016, the eight Great Lakes states voted to approve Waukesha’s diversion request with restrictions. One of the most important conditions that all water diverted from Lake Michigan to Waukesha must be returned, resulting in no net loss of water from the Great Lakes.

People in Michigan are familiar with Foxconn, a Chinese company that briefly toyed with the possibility of locating in Michigan. Instead, Wisconsin made a reportedly $4 Billion offer and Foxconn is locating in Racine, Wisconsin. On Wednesday, April 25th, the State of Wisconsin announced that it would allow a diversion of an average of 7 million gallons a day of Lake Michigan Water. Of that, 5.8 million gallons is to be used by Foxconn whose plant is located in both the Great Lakes and Mississippi River basins. Reportedly, 2.7 million gallons per day will not be returned to the Great Lakes basin, largely because of evaporation.

This diversion does not require unanimous approval under the Compact because less than 5 million gallons per day will be lost.

By way of comparison, the MDEQ’s recent Nestle permit which was the subject of much opposition allows 576,000 gallons of groundwater to be withdrawn and bottled. Oddly, no one in the Michigan press has noticed, yet.

]]>http://michigangreenlaw.com/wisconsin-great-lakes-withdrawal-under-the-radar/feed0What will 2017 Bring? Dramatic Change?http://michigangreenlaw.com/what-will-2017-bring-dramatic-change
http://michigangreenlaw.com/what-will-2017-bring-dramatic-change#respondTue, 20 Dec 2016 23:33:22 +0000http://michigangreenlaw.com/?p=8241In prior years, we knew that regulatory and environmental change was coming but we expected it to be slow and incremental. With an unknown quantity like President Elect Trump, one thing is clear – no one really knows what may happen. Here are a few possibilities:

1. Coal/Cleaner Energy Generation – revitalizing the coal industry was part of Mr. Trump’s midwest stump speeches. Will Mr. Trump be able to reverse Barack Obama’s Clean Power Plan? What about the Paris Climate Accord? Certainly, his team is looking at both of those right now. The dispute in Michigan v. EPA, decided in June 2015, continues to rage. In 2015, the US Supreme Court ruled that the EPA didn’t properly justify its rule governing mercury and toxic pollution (MATS) from power plants because it did not specifically address costs at the initial stage of the rulemaking process. In April, the EPA announced it was standing by its MATS rule and concluded that the benefits far outweighed the costs. Petitioners continue to litigate whether the EPA properly evaluated costs. Here in Michigan, new legislation has been passed (and is awaiting the Governor’s signature) intended to encourage additional investment in energy generation and transmission while balancing consumer choice and a greater percentage of renewable energy generation. Will it work? At a reasonable cost?

2. Power Generation Subsidies/Oil/Gas Generation – Mr. Trump’s attacks on “crony capitalism” would seem to mean that he will stop financial incentives for solar and wind generation. Will he also attack oil and natural gas supports in the tax code? Will he open up ANWAR to oil/gas exploration? Will he scale back attempts to regulate fracking? This will be difficult in light of the December EPA Report which concluded that fracking posed problems such as: fracking water withdrawals compete with other water needs; spills of hydraulic fracturing fluids and chemicals or produced water may impair groundwater resources; injection of hydraulic fracturing fluids into wells may allow gases or liquids to move to groundwater resources; discharge of inadequately treated hydraulic fracturing wastewater to surface water resources; and contamination of groundwater due to disposal or storage of fracturing wastewater.

3. Pipelines – will Mr. Trump reverse the Obama administration’s dim view of oil and gas pipelines such as the Keystone XL and Dakota Access Pipelines? How will this affect Michigan where public awareness of two 60+ year-old pipelines under the Mackinac Straits has galvanized both sides of the political spectrum into action. In 2014, Michigan convened a pipeline task force which issued a report in 2015. In September, 2015, the State entered into a written agreement with Enbridge to prevent the transport of heavy crude oil through the Straits Pipelines. The task force also recommended that the pipelines be independently evaluated and that additional financial assurance be provided. The State solicited Requests for Information and Proposals (RFPs) and Enbridge agreed to pay $3.6 Million for the evaluation of the Straits Pipelines. An independent evaluation of alternatives to the Line 5 pipelines is also underway. When those will be completed is not known.

4. Infrastructure – Mr. Trump campaigned on infrastructure (although to hear him tell it, that only encompasses airport quality), and Governor Snyder appointed a 21st Century Infrastructure Task Force which concluded that the State needed to be investing $4 Billion more than it was in infrastructure to address roads, bridges, internet, water, sewer and other infrastructure needs. Given the recent nationally publicized Flint Water debacle, will Michigan find the intestinal fortitude to fully invest in infrastructure or will we continue to patch and delay? Given the State’s recent fight against a federal judge’s order to deliver clean water, and Michigan legislators “default anti-tax setting,” the future does not bode well.

6. Other issues – there are a number of other issues on the horizon including cleanup standards, the maturing of the Great Lakes Water Authority and its ability to deliver clean water and septic services at a reasonable price, Michigan’s effort to reimagine its solid waste program, water withdrawals and protection of the Great Lakes from invasive species and nutrients leading to algal blooms.

]]>http://michigangreenlaw.com/what-will-2017-bring-dramatic-change/feed0Water, water … recycling?http://michigangreenlaw.com/water-toilet-to-tap-water-recycling-wastewater-grey-water-southwest-drought-california
http://michigangreenlaw.com/water-toilet-to-tap-water-recycling-wastewater-grey-water-southwest-drought-california#commentsTue, 09 Dec 2014 17:47:27 +0000http://michigangreenlaw.com/?p=7947We here in Detroit had far more rainfall this past summer than we usually get and between the long, cold winter and all the rain, our lake levels are nearing their normal levels. Meanwhile, in the southwest, drought conditions continue to grow. So much so that there’s a flurry of deeper well drilling in California. In Texas, some communities are installing mega-treatment and cycling water from their wastewater treatment plant back to their drinking water systems, under a trial permit. San Diego’s Sea World announced it was using treated saltwater in its toilets.

I’ve blogged about so-called “toilet-to-tap” before. At that point, it was more on the model of Orange County’s program – where treated water was discharged back into an aquifer from which drinking water was taken. That program is a way of speeding up the water cycle we all learned about in elementary school. Some call it “showers to flowers” and it is being expanded. In Texas, it looks like they are taking a more direct approach.

At least one gentleman I know has decried this as dangerous due to the possibility of industrial and other contaminants finding their way into the public’s drinking water. And, he’s right – there is a risk – but, as we have seen recently, there are risks to taking drinking water from a lake or river which receive runoff and NPDES discharges. Virtually all the water we see at the tap has been through a person’s body or has been impacted by some industrial or farming operation – it’s only a question of how much natural and professional treatment it receives prior to discharge, how long ago, how much dilution occurs and how much treatment before it’s put back into the drinking system.

The World Economic Forum has identified water as a key issue for the future. There simply isn’t much freshwater on the planet as this video shows. As the video shows, some 80% of our water gets used for power generation and farming. How we protect and conserve and, in some cases, recycle, this resource may be the story of the next 50 years.

]]>http://michigangreenlaw.com/water-toilet-to-tap-water-recycling-wastewater-grey-water-southwest-drought-california/feed1Free Riders, the United Nations, “Affordable” Water and the Daily Showhttp://michigangreenlaw.com/free-riders-the-united-nations-affordable-water-and-the-daily-show
http://michigangreenlaw.com/free-riders-the-united-nations-affordable-water-and-the-daily-show#respondTue, 18 Nov 2014 22:13:09 +0000http://michigangreenlaw.com/?p=7978Et tu, Jon Stewart? I was dismayed to read of the United Nations’ visit and evaluation of Detroit’s recent, well publicized water shut-off initiative. I suspect that it’s a waste of time; interesting, but a waste. First of all, the federal bankruptcy judge supervising the Detroit Bankruptcy refused to rule against the City on its now-revised shut-off program. I am not certain what authority the UN has in Detroit (I suspect none), it is possible that the UN could assert that the United States has violated some treaty. It is interesting that the UN human rights declaration does not discuss water. A commentary to that declaration does state that “the human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses“ and notes that it can be a violation when arbitrary or unjustified disconnections occur or when there are discriminatory or unaffordable increases in water tariffs.

that the shut-offs fell disproportionately on the poor while ignoring those businesses with the ability to pay seems backward and should have been the protesters’ focus

It is the word “affordable” that is crucial here. The UN documents do not state that government provided water must be free. In fact, as I noted in my earlier blog post and as the New York times noted previously, not letting market forces set water prices can lead to, in some cases, dramatically bad outcomes. Water in Detroit cannot be provided for free without a dramatic shift in how we pay for municipal services (i.e., raising taxes). At present, a significant segment of the population has been taking water for free and leaving the rest of us to pay for it. This is a classic “free rider” problem and it has led to exactly the sorts of problems that economists predict – an inability to provide the good (in this case water and sewer service) at a reasonable cost. The bottom line, getting the water to drinkable state (see this video which estimates that it takes $9 Million/year) isn’t free nor is the cost of maintaining the delivery system. So, if we want to have a world class system (vs this sort of jury-rigging), we need to find a way to pay for it.

It is possible that the UN may recommend a reduced rate schedule based on an ability to pay. Cleveland and a number of other cities have some sort of discount programs. This (and the hypocrisy of shutting off the poor but not profitable businesses) was the subject of a piece on last night’s Daily Show. Calling for a moratorium on shut-offs does seem like a call to simply continue the sins of the past. However, Jessica Williams’ point that the shut-offs fell disproportionately on the poor while ignoring those businesses with the ability to pay is a point that I made previously. It seems backward and should have been the protesters’ focus.

I was surprised by how long it took Jon Stewart and his crew to get around to this story – after all, it’s been kicking around for months. The humor of the expose made an important point – until recently, Detroit’s approach has been laissez faire and failed to distinguish between those who can’t pay and those who won’t pay. The Great Lakes Water Authority is now beginning to ramp up toward a more robust subsidy program – a point which the Daily Show failed to note. No one is suggesting that people be denied water or sanitary conditions, but I certainly think that those who can pay should pay and even those who cannot afford the full price should have some obligation to contribute toward the service so that they are not “free riders.” In short, the status quo simply cannot continue.

Provided courtesy of Space Science and Engineering Center (SSEC), University of Wisconsin-Madison

A recent report tells us that evaporation isn’t well understood and that we may see more of it in the fall and early winter than in the summer. According to the report, the relative humidity plays a bigger role than the temperature and as we know, it’s awfully dry in the winter. One quote from that report is staggering – “a 1-day loss of 0.5 inches of water from the total surface area of the Great Lakes represents a volumetric flow rate of 820 billion gallons per day – nearly 20 times the flow rate of Niagara Falls.”

The repeated polar vortices we have been experiencing have provided greater ice cover and, thus, there should be a later start to the evaporation season this year. The Great Lakes are reportedly 62% covered in ice, which already ranks this winter as 17th most coverage in the last 40 years. 1979 had the highest ice cover at 94.7 percent.

Weatherwise, this high ice cover may mean less lake effect snow, colder days, less runoff when the snow melt comes (although it’s been a very snowy January) but again, less evaporation.

It’s certainly better (waterwise) to be here than, say, California, where Governor Brown declared a drought emergency which likely will have significant impacts on farming and the foods eaten across the United States. This could be good for Michigan farmers. 2014 is already shaping up to be an interesting year for water and the Great Lakes.

]]>http://michigangreenlaw.com/water-levels-evaporation-agriculture-alternative-energy-clean-water-act-climate-change-energy-efficiency-energy-epa-great-lakes-farming-michigan-michigan-regulation/feed0Water, water everywhere.http://michigangreenlaw.com/drinking-water-waste-water-sewage-treatment
http://michigangreenlaw.com/drinking-water-waste-water-sewage-treatment#respondWed, 29 Jan 2014 22:07:27 +0000http://michigangreenlaw.com/?p=7579Did you ever think about where your water comes from and what may be in it? I have a good friend who never thought about the fact that there was a finite amount of water and that certainly some of what came out of his tap had, at some point, likely passed through someone else’s bladder. What that means is that treatment of wastewater has an impact on drinking water quality and the public health.

We’ve recently learned that the DWSD and the local counties have been trying to work out a deal to “regionalize” the Detroit Water System – thus far – to no avail. Also, just this week, rumors have surfaced that the DWSD may be cutting 40% of its staff – a reorganizing of the system which, if successful, could lead to lower operating costs, lower borrowing costs and may make a multi-county regional deal more likely. If not, the system could be back in trouble. There have also been rumors of a possible sale of the system or that the Detroit Emergency Manager might strike some sort of deal without Oakland and Macomb counties – which hold many of DWSD’s customers.

This is a big deal because the DWSD supplies drinking water to 126 communities in southeast Michigan, other than Detroit, serving roughly 40% of the state’s population. The system is one of the Country’s oldest, dating back to the 1830’s and the infrastructure issues involved are huge, given that the system has five water treatment plants treating water from two intakes in the Detroit River and a third in Lake Huron. As we reported earlier, because the DWSD was able to achieve compliance on the other *ahem* end, it was finally let out of what was then one of the oldest ongoing lawsuits in existence.

As far as drinking water, one hopes that the treatment deals with every possible chemical and pathogen but we know that it does not. With a need for infrastructure upgrading and impending staffing cuts, the time seems right to strike a regional deal that benefits everyone in both the short and long terms. Let’s hope the region can pull this off. Sound water and wastewater systems are important for both our health and our economy.

Astronaut Karen Nyberg tweeted this photo of Michigan and the Great Lakes from aboard the International Space Station on Oct. 13. (Courtesy Photo | Karen L. Nyberg)

The Governor’s office recently requested a White Paper relating to the so-called “blue economy.” We here in Michigan have always known about our Great Lakes (and yes, I know they don’t belong to Michigan but they define us – if you don’t believe me – see the photo).

The White Paper recognizes these (noting that water is responsible for nearly a million jobs and $60 billion in the Michigan economy) and also discusses water technology businesses, water research, modeling sustainable water uses and making water a long-term platform for sustainable growth. The thought that Michigan with its abundance of riches (20% of the world’s fresh water!) is pursuing businesses and policies that will be based on the scarcity of clean fresh water is impressive as it normally seems that places without much water focus on shepherding it. The focus on innovation, research, manufacturing and entrepreneurship is refreshing (perhaps a tad late, as other states and Canada are also focusing on this).

Also interesting to me is the White Paper’s silence on hydro-power or wind-power driven by the lakes (although that may be the focus of another of the Governor’s initiatives – a point I will discuss in a later blog post).

There is a delicate balance between the various uses of the Great Lakes and concerns regarding lake levels and invasive species that often pits farms and factories against shippers and against leisure users of the lakes. I commend the Governor on beginning the process and trying to focus businesses and researchers on something that we here in Michigan often take for granted because of the abundance of riches we have.

Water supplies are so low, onsite wastewater recycling is the new thing.

Most of the water is going to agriculture.

There might be legal fights over water.

The water out there is likely in need of expensive desalinization.

Personally, I’m glad to live in the Great Lakes State.

]]>http://michigangreenlaw.com/glad-youre-not-living-in-the-texas-drought-me-too/feed0Next Week is Great Lakes Week – in Detroithttp://michigangreenlaw.com/next-week-is-great-lakes-week-in-detroit
http://michigangreenlaw.com/next-week-is-great-lakes-week-in-detroit#respondTue, 04 Oct 2011 19:06:44 +0000http://michigangreenlaw.com/?p=5375Did you know that from October 11 – 14, there will be a series of meetings in Detroit to evaulate how to improve the quality of the Great Lakes?

The week’s activities will bring regional and national leaders together with representatives from the U.S. and Canada to highlight efforts to implement solutions for the lakes’ most pressing problems. Great Lakes Week also gathers the annual meetings and conferences of various organizations in one place, making it one of the most wide-ranging Great Lakes summits in history.

Tourists to Chicago are likely to hear how some 100 years ago, the State of Illinois, as an engineering marvel of the age, reversed the flow of the Chicago River (which used to flow into Lake Michigan) so that now it flows away from Lake Michigan and into Mississippi River basin (the reason for this had to do with sewage flowing into the City’s drinking water supply).

Reportedly, every day, 2 billion gallons of water flows away from Lake Michigan which 100 years ago would flow INTO the Lake (the third largest body of fresh water in the world).

With the latest invasive species threat, Asian carp, something Kevin blogged about recently, a number of groups have proposed separating the Great Lakes and Mississippi basins. But that effort picked up some serious scientific credibility and traction with the latest report from a group of scientists in a well respected journal, the Journal of Great Lakes Research. The report, whose abstract I have read, takes on four common arguments against separating the River from the Lake:

1. An existing electric barrier bars the carp. The authors cite dozens of positive DNA samples taken from waters upstream of the canal as solid evidence that “the electric barriers have not been fully effective on Asian carp.”

2. Asian carp are already in the Great Lakes so there’s nothing to be done. The paper claims there is no compelling evidence that, despite DNA samples showing a barrier system breach, the fish have begun reproducing.

3. Even if Asian carp get into the Great Lakes, they won’t be able to thrive. The authors argue there are places in the lakes, particularly warm, algae-rich areas including Saginaw Bay and the west end of Lake Erie, where the fish will find enough food to thrive.

4. Even if the fish do get established, they won’t do the harm some have claimed. The paper argues that the carp could negatively impact what’s left of the lake’s native fish species in a variety of ways.

The Army Corps of Engineers doesn’t plan to finish its ongoing study until 2015 at the earliest. However, these scientists say more study isn’t needed (and when do scientists ever say that?) and they support proposed legislation to force the Corps to speed up the study. In that way, everyone will know the costs and the risks and can evaluate the best way to proceed. Certainly, the shipping industry will not like this but Michigan and just about every Great Lakes jurisdiction (except of course, Illinois) is very concerned about the decimation of the local fishing industry by this invasive species. For once, the Courts have been unhelpful and the focus now falls on Congress.